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LECTURE III: Democracy and Legislation - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

Edition used:

Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


LECTURE III

Democracy and Legislation

does not the advance of democracy afford the clue to the development of English law since 1800?

This inquiry is suggested by some indisputable facts. In England, as in other European countries, society has, during the last century, advanced in a democratic direction. The most ordinary knowledge of the commonest events shows us that in 1800 the government of England was essentially aristocratic,1 and that the class which, though never despotic, was decidedly dominant, was the class of landowners and of large merchants; and that the social condition, the feelings and convictions of Englishmen in 1800, were even more aristocratic than were English political institutions. No one, again, can doubt that by 1900, and, indeed, considerably before 1900, the English constitution had been transformed into something like a democracy. The supremacy of the landowners had passed away; the destruction by the great Reform Act of rotten boroughs had been the cause and the sign of a thorough change in the system of government. The electorate, which had in the main represented the landed interest, was extended in 1832 so as to give predominant power to the middle classes and to the manufacturers. In 1867 the artisans of the towns acquired the parliamentary suffrage. Subsequent legislation, ending with the Reform Acts2 of 1884–1885, admitted householders in counties to the same rights as the artisans, and finally established the system of so-called household suffrage, under which England is, in theory at least, governed by a democracy of householders. Of the real extent and the true nature of this advance towards democracy it is hardly necessary here to speak. All that need be noted is that alterations in parliamentary and other institutions have corresponded with an even more remarkable change, in a democratic direction, of public sentiment. Paley was a Whig, and an acute and liberal thinker, but the whole tenor of his speculations concerning the English constitution, with their defence of rotten boroughs, and their apology for “influence,” or, in plain terms, for the moderate use of corruption, is not more remarkable for its opposition to the political doctrines, than for its contrast with the whole tone of political thought prevalent at and indeed before the close of the nineteenth century. The transition, then, from an aristocracy to a democracy is undeniable. May we not, then, find in this transition the main and simple cause of all the principal changes in the law of the land?

The true and general answer to this question is that the expression “advance of democracy,” or rather the idea which this and similar phrases embody, is vague and ambiguous, and that, whatever be the sense in which the term is used, the advance of democracy affords much less help than might have been expected, in the attempt to account for the growth and evolution of the modern law of England.

This reply, however, both needs and repays explanation.

The word “democracy” has, owing in great measure to the popularity and influence of Tocqueville’s Democracy in America, acquired a new ambiguity. It may mean either a social condition or a form of government.

In the writings of Alexis de Tocqueville, “democracy” often means, not a form of government or a particular kind of constitution, but a special condition of society—namely, the state of things under which there exists a general equality of rights, and a similarity of conditions, of thoughts, of sentiments, and of ideals. Democracy in this sense of the word has no necessary connection either with individual freedom or even with popular government. It is indeed opposed to every kind of aristocratic authority, since aristocracy or oligarchy involves the existence of unequal rights and of class privileges, and has for its intellectual or moral foundation the conviction that the inequalities or differences which distinguish one body of men from another are of essential and permanent importance. But democracy in this sense, though opposed to privilege, is, as Tocqueville insists, as compatible with despotism or imperialism as with popular government or republicanism. Now, if democracy be thus used as a name for a social condition, the expression “advance towards democracy,” or any like phrase, can, it is clear, mean nothing but the progress among the inhabitants of a country towards a condition of general equality and, still more truly, of similarity. Hence Tocqueville and his followers trace back the progress of democracy to times long anterior to the revolutionary movements which marked the close of the eighteenth century, and see in Richelieu and in Frederick the Great, no less than in Napoleon I. and in Napoleon III., the promoters of the democratic regime. But if the progress of democracy, though it may often involve a change in the form of government, is in itself little else than the approach towards a given social condition, then the progress of democracy gives little or no help towards accounting for the particular development of the law of England. Grant, for the sake of argument—though the concession is one which, if we have regard to facts, must be accompanied by a large number of reservations—that the history of English, as of European civilisation generally, is the record of the continuous, though unconscious progress of mankind towards a condition of equality and similarity, and that every change which has taken place, including alterations in the law, is connected with, or rather is a part of the advance of democracy, and we arrive, after all, only at the true but barren conclusion that the growth of English law, as of every other English institution, during the nineteenth century is due to the general condition of English society. This is one of those explanations which, as it is true of everything, is for that very reason the adequate explanation of nothing.

“Democracy” in its stricter and older sense, in which it is generally employed by English writers, means, not a state of society, but a form of government; namely, a constitution under which sovereign power is possessed by the numerical majority of the male citizens; and in this sense, the “advance of democracy” means the transference of supreme power from either a single person, or from a privileged and limited class, to the majority of the citizens; it means, in short, the approach to government by numbers, or, in current, though inaccurate phraseology, by the people.

Now, the “advance of democracy,” if thus understood, does in truth, in so far as it has really taken place, explain, though only to a limited extent, the alterations made in the English constitution, and a student must, in trying to estimate the character of these alterations, take into account the influence of definitely democratic opinions. Nor must he confine his attention merely to changes in what is technically called the constitution—such, for example, as the modification in the English representative system produced by the various Parliamentary Reform Acts, which begin with the great Reform Act of 1832: he must also note every important change in any of the organs of government. He will then assuredly find that the advance of democracy does explain the noteworthy fact that throughout the nineteenth century every permanent change of a constitutional character has been in a democratic direction, and shows how it has happened that every Act for the reform of Parliament has extended, and has been meant to extend, the influence of mere numbers. Even, however, in the province of constitutional law, democratic progress fails to explain several remarkable phenomena. How, for example, does it happen that the constitution of England, which is more readily responsive to the force of opinion than is any other existing polity, remains far from absolutely democratic, and is certainly not nearly as democratic as the constitutions of France, of Switzerland, of the United States, or (what is even more noteworthy) of the self-governing English colonies, such as the Dominion of Canada or the Australian Commonwealth? Nor, again, does the tendency towards democracy explain how it is that the demand for universal suffrage, which made itself heard with great force during the Chartist agitation towards the middle of the last century, is now almost unheard. But if the progress of democracy fails to explain at all perfectly the development or the condition of the English constitution, still less does it elucidate the course of legislation, in matters which have no reference to the distribution of political power.

Nor need this negative result cause any surprise. The idea that the existence of or the advance towards popular government in any country will of itself explain the course which legislation there takes, rests on the assumption that every democracy favours the same kind of laws or of institutions. This assumption is constantly made, but it rests on a very small foundation of fact. It has a certain amount of validity within the narrow sphere of constitutional law, but its plausibility depends on the confusion between the powers and the tendencies of a democracy, and it is grounded on a curious illusion which is contradicted by the most notorious facts.

Let us first examine the exceptional case of constitutional law, using that term in its very widest sense.

From the progress of democracy—which, be it remembered, we are here considering simply as a change in the form of government—we may with some confidence infer that, while this change is going on, no alteration in a constitution will take place which obviously, and upon the face of it, diminishes the authority of the people. It is necessary, however, when trying to apply this conclusion, to recollect that the mass of mankind often fail to perceive or appreciate the effect of gradual and apparently petty changes. Hence, even in democratic countries, habits or institutions may come into existence which in reality curtail the power of the people, though not apparently threatening that power.3 It is probably true, for instance, that the elaborate party system of the United States does actually, though not in form, bestow on party managers and wirepullers a large amount of power, which is subtracted from the just authority of the mass of the citizens. But this party system exists just because the majority of the people do not perceive its anti-democratic tendency. Still, though we should keep in mind the possibility that the members of a democracy may fail to perceive the true character of laws or institutions which limit the authority of the people, it may fairly be assumed that where opinion has become democratic, or is becoming democratic, and where the mass of the people have obtained, or are obtaining sovereign power, each change in the constitution will probably increase the authority of numbers.

Let us now see how far the advance of democracy is likely to affect laws which have not a constitutional character, or, in other words, which do not tell upon the distribution of sovereign power.

In respect of the influence of democracy on such laws, we can draw with some confidence one probable conclusion. We may with high probability assume that no law will be carried, or at any rate that no law will long remain in force, which is opposed to the wish of the people, or, in other words, to the sentiment prevailing among the distinct majority of the citizens of a given country. It is, however, absolutely impossible from the advance of democracy to draw, with regard to laws which do not touch the balance of political power, anything more than this merely negative inference. The impossibility arises from the patent fact that, though in a democratic country the laws which will be passed, or at any rate will be put into effect, must be the laws which the people like, it is absolutely impossible to predict on any a priori ground what are the laws which the people of a country will at any given time wish to be passed or put in force.

The reason why the truth of a conclusion which is hardly disputable is not universally admitted, is to be found in a singular illusion which affects alike the friends and the opponents of democratic change. Democracy is a comparatively new form of government. Reformers, or revolutionists, who have attempted to achieve definite changes, e.g. the disestablishment of the Church, the abolition of primogeniture, the creation of peasant proprietorship, or, it may be, the regulation of public labour by the State for the advantage of artisans and labourers, stand in a position like that of men who look for immense blessing to the country from the accession to the throne of a new monarch; they tacitly or openly assume that the new sovereign—in this case the democracy—will carry out the ideas of beneficent legislation and good government entertained by the reformers who have placed the sovereign in power. The Whigs of 1830 supposed that a reformed Parliament would carry out the ideas which the Whigs had advocated in the Edinburgh Review. Radicals, such as the two Mills, Joseph Hume, or Francis Place, held that reform meant the triumph of unadulterated Benthamism. The Free Traders of 1846, even with the experience of France and America before their eyes, identified the progress of democracy with the acceptance of free trade. Many are the Englishmen who, in our own day, have found it impossible to believe that the old watchwords of peace, retrenchment, and reform might have as little attraction for a sovereign people as for a despotic monarch; and there are men still living who can recall the confidence with which ardent reformers anticipated that the predominance of British householders would ensure the adoption of exactly the policy which the reformers themselves deemed beneficial. Nor have the opponents of democratic innovation been free from a delusion strictly analogous to the error which has falsified the forecasts of democrats. Tories or Conservatives, who looked with terror and aversion on democratic progress, have for the most part assumed that the sovereign people would of necessity support legislation which is hateful to every man of conservative instincts. During the debates on the great Reform Bill the attacks made upon it by Tory zealots teemed with anticipations of iniquitous legislation. Men who hated revolution could not believe that democrats might be conservatives. At the bottom, in short, of all speculations about the effects of the advance of democracy, constantly lies the assumption that there exists such a thing as specially democratic legislation which every democracy is certain to favour. Yet there never was an assumption more clearly at variance with the teaching of history.

Democracy in modern England has shown a singular tolerance, not to say admiration, for the kind of social inequalities involved in the existence of the Crown and of an hereditary and titled peerage; a cynic might even suggest that the easy working of modern English constitutionalism proves how beneficial may be in practice the result of democracy tempered by snobbishness. The people of England have certainly shown no hostility to the existence either of large fortunes or of large estates, and during the nineteenth century have betrayed no ardent desire for that creation of a large body of peasant proprietors, or yeomen, which enlightened Liberals have thought would confer untold benefits on the country. In truth, the equal division of a man’s property among his descendants or his nearest relatives at his death, though almost essential to the maintenance of small estates, is thoroughly opposed to that absolute freedom of testamentary disposition to which Englishmen have so long been accustomed that they have come to look upon it as a kind of natural right. The English ecclesiastical establishment, opposed as it is to many democratic ideas or principles, has not been the object of much popular attack. The Established Church is more influential and more popular in 1904, than it was in 1830, and the influence of Non-conformists is, under the democratic constitution of to-day, apparently less considerable than was the influence some sixty or seventy years ago of what was then called the Dissenting interest. English democracy, in short, whilst caring somewhat for religious freedom, exhibits indifference to religious equality. From another point of view the position of the English democracy is peculiar. Almost alone among popular governments of the world, it has hitherto supported complete freedom of trade, and has on the whole, though on this matter one must speak with less certainty, favoured everything that promotes freedom of contract. Now the point to be specially noted is that the attitude of the English people (and this holds true of the attitude and legislative action of the people of every great country) is determined much less by the mere advance of democracy than by historical, and, even what one may fairly term, accidental circumstances. Democracy in England has to a great extent inherited the traditions of the aristocratic government, of which it is the heir. The relation of the judiciary to the executive, to the Parliament, and to the people, remains now much what it was at the beginning of the century, and no man dreams of maintaining that the government and the administration, are not subject to the legal control and interference of the judges. Our whole system of government, lastly, is, as it has been since 1689, essentially parliamentary. And the supremacy of Parliament involves in England constant modification of the law of the land. The English Parliament is now a legislative machine which, whatever the party in office, is kept constantly in action.

Turn now by way of contrast to France.

French democracy is opposed to differences of rank involving political inequality. The very foundation of the French political and social system is the existence of a large body of small landed proprietors, or, to use English expressions, of small freeholders. Testamentary freedom, in the English sense of the word, is unknown. The systematic and equal division of a deceased person’s property among his family thoroughly corresponds with French ideas of justice, and prohibits that formation of large hereditary estates which has long been a marked feature of English social life. For personal liberty, and for what we should call religious freedom, by which I mean the effective right of every man to advocate and propagate any theological or religious dogma which he pleases to adopt, and generally for the right of association, French democracy has hitherto shown little care. The whole relation of the Courts to the executive is one which Englishmen find it hard to realise; the dogma of the separation of powers which, be it noted, still remains one of the sacred principles of 1789, is, as the doctrine is interpreted in France, absolutely inconsistent with interference by the judges with the action either of the government or of the administration. In matters of trade and commerce, again, the French democracy has been as zealous for protection as the English democracy for free trade. The French democracy, in short, has inherited and accepted the traditions of the monarchy, and still more of the Napoleonic Empire; and democratic France, though tolerant of revolutions which hardly affect the ordinary life of the people is, as I have already pointed out,4 as compared with England, the home of legislative conservatism.

A glance at the democracies, either of the United States or of Switzerland, would show us in each case types of legislation differing alike from each other, and from the laws either of democratic England or of republican France. But for our present purpose it is unnecessary to carry the comparison further. The annals of a century show that the mere advance of democracy does not, important as in many ways it is, of necessity produce in different countries one and the same kind of changes in the law. That this is so has of recent years been acknowledged both by Conservatives and by social reformers or revolutionists. Both in England and abroad, so-called conservatism has, under its ablest leaders, shown itself very tolerant of an extended or even a universal suffrage, and zealots for social change see in the Referendum, which, whatever its merits or demerits, is an essentially democratic institution, a device for retarding socialistic innovations. But if the progress of democracy does not of itself, except as regards the distribution of sovereign power, necessarily determine the character of legislation, we cannot expect that it should explain the development of the law of England. The explanation must be found, if at all, in the different currents of opinion, bearing more or less directly on legislation, which have, during different parts of the nineteenth century, been predominant in England.

[1. ]See this stated forcibly, though with great exaggeration, Ostrogorski, Democracy and Organization of Political Parties, chap. i.

[2. ]The Representation of the People Act, 1884, 48 Vict. c. 3; the Redistribution of Seats Act, 1885, 48 & 49 Vict. c. 23.

[3. ]The Chandos clause, introduced into the Reform Act by the Tory Opposition, but supported by some Radicals, gave a vote in the counties to tenants from year to year, mainly tenant farmers, paying a yearly rent of £50. This clause increased the number of voters, and seemed, therefore, democratic; but as such tenant farmers were dependent on their landlords, it really increased the power of the land-owners, and robbed the counties of their independence. It was supported, however, by democrats, who did not perceive the real tendency of the so-called amendment.

[4. ]See p. 7, ante. Note that divorce has with great difficulty been established in France; though existing under the First Republic and the Empire, it was abolished in 1816, and not again legalised till 1884.